White Law/Black Deaths: Nomocide and the Foundational Absence of Consent in Australian Law

Abstract

State and police brutality around the globe in 2020 brought into sharp focus the role of legal apparatuses in causing death, particularly of black and Indigenous lives. Against the backdrop of Black Lives Matter (#BLM) events and protests, #endSARS in Nigeria and amid the ongoing fight against Aboriginal deaths in custody in Australia, the critique made by Isobell Coe in Nulyarimma v Thompson, the case that sought to have the crime of genocide and its impact as part of ongoing colonialism recognised in Australian law, is more urgent than ever. Following Coe’s critique that Australian law becomes complicit in genocide if it fails to hear Indigenous peoples protests, how do and how should legal thinkers engage with the system of Australian law especially in a climate where the direct link between settler-colonial legal infrastructures (courts, prisons, police and legislators) and the violation of Indigenous and black lives has been laid bare. A legal system lacking consent at its foundation and characterised in the present day by a refusal to hear and engage with its violent origin, while seeking to acquire consent retrospectively is nomocidal. Nomocide captures the function performed by all arms of the law in committing genocide in Australia. As such, the complicity and culpability of a system of law founded in non-consensual conditions must be reckoned with, without delay. This requires a willingness among scholars and practitioners of law to see it as deathly or nomocidal in order to begin addressing the colonial violence that stems from it.